Courts for the Southern District of New York.
In the instant case, the above-stated criteria have been satisfied. First, plaintiff's motion for civil contempt was brought by order to show cause and was duly served on Mr. Schwartz. Thus, Mr. Schwartz had actual notice that he was the defendant in a civil contempt proceeding. In addition, Mr. Schwartz appeared personally and through counsel at the July 11, 1989 hearing, and testified and called witnesses in his defense. Finally, Mr. Schwartz testified that, on June 14, 1989, he received notice that he was the defendant in this civil contempt proceeding. See Weitzman v. Stein, 70 Civ. 4037 (DNE) (July 11, 1989 Hearing Transcript), at 78-79.
Second, the May 16 Order was clear and unambiguous. The May 16 Order clearly ordered the seizure and sale by the Sheriff of a 1983 Lincoln Towne Car bearing a specified license plate. The May 16 Order also clearly enjoined, inter alia, Sidney Stein and his "representatives" from interfering with any part of the May 16 Order, including those provisions of the May 16 Order that directed the seizure and sale of the Lincoln. Mr. Schwartz, Sidney Stein's attorney, clearly was a representative of Mr. Stein.
Third, Mr. Schwartz' contemptuous noncompliance with the May 16 Order has been proven by clear and convincing evidence. As an initial matter, it is clear from the record--and Mr. Schwartz has admitted--that he had knowledge of the May 16 Order. See Weitzman v. Stein, 70 Civ. 4037 (DNE) (July 11, 1989 Hearing Transcript), at 72, 75-76. Mr. Schwartz was served with a copy of the May 16 Order by the Clerk of the Court; the May 16 Order was discussed on the record during a conference held on June 21, 1988; and Mr. Schwartz acknowledged at the July 11, 1989 hearing that he was aware of the terms of the May 16 Order. Despite the existence of a decretal paragraph in the May 16 Order prohibiting any representative of Sidney Stein from interfering with the provisions of the Order, Mr. Schwartz delivered to the Sheriff a letter that caused the Sheriff not to sell the Lincoln. See Weitzman v. Stein, 70 Civ. 4037 (DNE) (July 11, 1989 Hearing Transcript), at 10-13, 26-28, 33-35.
At no time has Mr. Schwartz offered an excuse or justification for the transmittal of this letter to the Sheriff. Moreover, at no time did Mr. Schwartz seek a stay of the May 16 Order. As a result of the delivery of the letter to the Sheriff, the Sheriff terminated a previously established sale of the Lincoln. Had Mr. Schwartz not presented this letter to the Sheriff on May 30, 1988, the sale would have occurred the following day as scheduled.
I find that the presentation of the letter by Mr. Schwartz to the Sheriff obstructed the enforcement of the May 16 Order. Such action was expressly prohibited by the May 16 Order. Accordingly, Mr. Schwartz' conduct constitutes civil contempt. Far from being reasonably diligent or energetic in attempting to accomplish what was ordered, Mr. Schwartz interfered with the accomplishment of the objectives of the May 16 Order.
Accordingly, I find that Mr. Schwartz' obstruction of the enforcement of the May 16 Order constitutes civil contempt. I further find, however, that Mr. Schwartz' contemptuous conduct was not deliberate or willful. Mr. Schwartz testified that, at the time he sent the letter to the Sheriff he believed that his actions were "necessary, reasonable, and appropriate." See Weitzman v. Stein, 70 Civ. 4037 (DNE) (July 11, 1989 Hearing Transcript), at 75. Mr. Schwartz' actions were neither reasonable nor appropriate, however, and his incompetence and ignorance of relevant legal principles was dismaying.
Although plaintiff has presented a claim to this Court for reimbursement of expenses and attorney's fees, I find that such an award would not further the interests of justice or be appropriate in light of the record before this Court. Accordingly, as a penalty for contemnor's conduct, I admonish Barry Schwartz, Esq. on the record for his obstruction of the enforcement of this Court's May 16 Order.
Dated: New York, New York
August 10, 1994
David N. Edelstein